Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

13 November 2014

I Wanted a Mission

Life has won the past week or more, between fall allergies, laryngitis, and 25th anniversaries that should be a joyous occasion but are tarnished by other things. In any event, several recent events seem to require comment. For some value of "require" that includes me inflicting my opinions on internet passersby.

The "hottest" news is that Hachette and Amazon have "settled" their "differences" on e-books pricing. Leaving aside what Judge Cote might think about this — judges don't tend to like it when litigants who are under their supervision go ahead and do almost the same damned thing anyway, alleging (with straight faces) that this time they did it legally — the key thing to note is that the utterly misnamed "agency model" appears to have won out... at least for e-books. As I've remarked before, it's not an agency model, but a consignment agreement that is slightly different from the existing consignment systems used for trade books. We'll also leave aside any comparison of Mr Pietsch's e-mail to authors and agents (which I saw in the wee dark hours this morning) to either epistomological truth or, given that obvious futility, actual compliance with legacy contracts, many or most of which make reference to and set author compensation based upon "list price." Entire phalanxes of accountants and financial consultants are being imported from H'wood (or, if paying moving expenses seems too much, from derivatives desks on Wall Street) to supervise the impending chicanery over royalty statements... the first of which won't be issued until September 2015 at earliest.

Our interests are totally aligned with yours. Even if you don't believe that's our goal, look at our business. Our whole business is to maximize the value of your music.

It's literally the "money quote." Mr Ek might be lying to the rest of us, and to artists in particular, by asking us to trust him that he really means the missing words at the end of the statement ("that we pay to you"). He might also be lying to every investor and shareholder of his company by blatantly refusing to conform to the shareholder-wealth-maximization norm inherent in for-profit corporate law. Or both.

Ultimately, Marx was completely misguided in his analysis of capitalism; control of the means of production is virtually meaningless, and particularly so for anything that requires significant individual skill or creativity to produce. That ranges from bespoke tailoring to complex machines like automobiles to virtually every aspect of the arts. It is actually substantially less expensive to build and staff a factory than it is to build and staff a fulfillment operation for that factory's products — or, indeed, for any factory's products; or for any kind of products of any kind at all. The potential problems are with control of the means of distribution, for the simple reason that "manufacturers" will pop up to meet product needs without much regard for the path from the manufacturer to the customer. In short, just like the last couple thousand years of military history teach, it's logistics that ultimately matters — and the more protracted a campaign, the more the logistics matter. For all of the whingeing from automobile manufacturers, the automobile dealers have been doing just fine (as an increasingly concentrated group, with disturbing structural similarity to booksellers...).

The Fine Print

Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.

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Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.

I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.

Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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